Analysis: Anti-Lobbying Act & Dan Scavino

American Oversight is dedicated to accountability and ethics in government. That means investigating and calling out misconduct whenever we see it—but as a recent dustup demonstrated, not everything that seems scandalous at first is actually illegal. Or to put it another way, instant reactions on Twitter may not always be the best arbiter of the law.

Last week, Dan Scavino Jr., assistant to the president and director of social media, tweeted “#Obamacare is a disaster! #RepealANDReplace! Call your Rep and tell them you support #ACHA! #PassTheBill” on his official White House Twitter handle, and linked to an online tool to find the phone number of your local representative.

(The president’s official @POTUS and personal @realDonaldTrump accounts made similar appeals, but given the greater latitude typically given to the president in this area, here we’ll focus on Mr. Scavino’s conduct.)

Mr. Scavino’s message hardly seems surprising during the middle of the White House and GOP’s hurly-burly effort to pass health care reform in the House of Representatives. But did Mr. Scavino’s tweet run afoul of the law?

An obscure law passed in 1919, the Anti-Lobbying Act, prohibits the use of congressionally appropriated funds to finance any “personal services, advertisement, telegram, telephone, letter, printed or written matter, or other device …” that directly or indirectly is “intended or designed to influence in any manner a Member of Congress, to favor, adopt, or oppose… any legislation… or appropriation…” In plain English, Congress doesn’t want the executive branch to use taxpayer funds to encourage citizens to lobby Congress. Once a criminal statute, after 83 years without a single prosecution, Congress amended the law in 2002 to impose civil penalties (although another obscure law, the Anti-Deficiency Act, may still make criminal penalties available for violations of the Anti-Lobbying Act).

Mr. Scavino’s tweet, sent using his official White House Twitter account, was an effort to generate constituent calls in support of the American Health Care Act (AHCA). On its face, that might appear to violate the Anti-Lobbying Act. Given the Administration’s apparently sometimes lax approach to ethicalrules and legal requirements, one might be quick to see another violation. But in this case, assuming you accept the Department of Justice’s (DOJ) longstanding interpretation of the act, such a reflexive response may not be correct.

Why wouldn’t Mr. Scavino’s tweet violate the law? In some ways, it seems like an example of precisely the sort of problem Congress appears to have been trying to address: using taxpayer resources (Mr. Scavino’s taxpayer-funded time, electricity, computer, and internet resources) to try to gin up public support for a bill currently pending before Congress. Promoting a political agenda hardly seems like the most appropriate use of public funds.

But the Office of Legal Counsel (OLC), an office at the Department of Justice responsible for issuing official legal interpretations, has consistently found good reasons to construe the Anti-Lobbying Act narrowly, and has done so across Administrations of both parties.

That is primarily because, from OLC’s point of view, a literal or broad reading of the act could interfere with the president’s performance of his constitutionally assigned functions. To begin with, the president has a “constitutionally established role in the legislative process.”1 For instance, the Recommendations Clause requires the president to “recommend to [Congress’s] consideration such measures as he shall judge necessary and expedient.” Moreover, the president can only discharge his “constitutionally mandated” responsibilities in the legislative process effectively, in OLC’s view, through the use of his aides and political appointees.2 And, OLC notes, Congress is well aware of the extensive efforts traditionally undertaken by executive branch officials to work with Congress on the administration’s legislative agenda, and couldn’t have meant to prohibit that.3 Consequently, OLC does not interpret the Anti-Lobbying Act to apply to traditional executive branch activities working with Congress on legislation or appropriations, such as offering views on pending bills, testifying, or meeting with staff. This sort of direct lobbying by the executive branch is understood by OLC to be accepted by Congress.

And in OLC’s view, the president’s constitutional functions do not stop there. According to OLC, the president has a “constitutionally protected ability to communicate with his constituency concerning the decisions for which the president, as the politically accountable head of the executive branch, is alone responsible,”4 and this authority would be threatened if he were not able to “communicate freely with the citizens of the United States, including on matters that relate to legislative affairs.”5 Thus reading the act “broadly to restrict all communications with the public with respect to legislation or appropriations would interfere with the executive’s ability to perform his constitutionally imposed responsibilities.”6

Accordingly, OLC does not view the act as applying to public speeches and appearances or to the published writings of the president, presidential assistants, or senior executive branch officials.7 Indeed, OLC does not believe that the act prohibits such public statements from seeking support for administration positions, or even encouraging the public to promote those positions to Congress.8

Rather, OLC views the law as primarily focused on “grass-roots” lobbying campaigns by executive branch officials that would involve spending a large amount of taxpayer money.9 In places, OLC even suggests that the act may be limited application to only “private communications” designed to rally public support for legislation.10 In addition, OLC has implied that the act only applies to activities that require a significant expenditure of appropriated funds.11

Finally, OLC has indicated that it does not view the law as applying at all to lobbying activities undertaken by the president, his aides and assistants within the Executive Office of the President, the vice president, and cabinet members or certain other senior officials within their areas of responsibility.12 This would mean that these officials don’t even need to consider how their conduct comports with the act. However, it is not clear how far OLC intends this general exemption to extend: OLC has also expressly cautioned against participation by the president, presidential aides, and other senior executive branch officials in the sorts of indirect “grass-roots” lobbying campaigns that are the focus of the anti-lobbying law, at least outside the context of public speeches or published writings.13

Under DOJ’s standards, then, Mr. Scavino has a number of arguments that his tweet does not violate the act.

First, he is a presidential aide and his conduct might simply fall outside the ambit of the act as interpreted by OLC, as Sean Spicer, the White House press secretary, has said. But given OLC’s caution about “grass-roots” lobbying by presidential aides (and other officials) and the fact that his tweet explicitly called on constituents to call their member of Congress, he may want to consider additional defenses.

Mr. Scavino also has the argument that the tweet is a published writing by a presidential aide that should not fall within the scope of the act’s prohibitions, as construed by OLC. A public tweet could be distinguished from a private letter campaign seeking to rally support from citizens for an Administration proposal.

Finally, Mr. Scavino’s tweet likely did not entail a substantial expenditure of appropriated funds. Appropriations paid for his time, computer, electricity, and connection to the internet, but the total expenditure in connection with the tweet is likely not material if there is any requirement that the expenditure be significant.

Given these arguments, it is unlikely that Mr. Scavino needs to be concerned that the Department of Justice might come knocking to ask about his tweet.

Does that mean there is no problem with Mr. Scavino’s tweet? The tweet was a transparent effort to encourage the public to lobby Congress in connection with the AHCA. In that sense, unlike when executive branch officials lobby Congress directly, it falls within the heartland of the concerns Congress intended to address with the Anti-Lobbying Act.

And even if DOJ would give him a pass, there’s also the Government Accountability Office (GAO) to consider. GAO is the federal agency responsible for investigating misuse of appropriated funds on behalf of Congress, and it has applied anti-lobbying laws and related restrictions wherever any amount of appropriated funds are used for indirect “grass-roots” lobbying efforts, whether public or private, notwithstanding DOJ’s views.14

Indeed, Mr. Scavino’s tweet mirrors conduct that GAO has found problematic when undertaken by senior agency officials. In 2014, GAO concluded that a deputy secretary at an agency violated a comparable law barring grass-roots lobbying by circulating an email to public recipients requesting that they contact their senators in support of a particular appropriations bill, because the email did not just convey the Administration’s position on the bill but explicitly urged the public to contact members of Congress.15

In reaching this conclusion, GAO expressly rejected the agency’s argument that the prohibition did not apply to the deputy secretary because he was presidentially appointed and Senate-confirmed, applying instead a bright-line rule that “evidence of a clear agency appeal to the public to contact members of Congress in support of… pending legislation is a violation.”16

We don’t know that GAO would extend this reasoning to a presidential assistant. But it does raise a question—even if Mr. Scavino’s tweet wouldn’t draw any official sanction, is this the sort of activity that Congress expected taxpayers to fund?

1. See Lobbying by Executive Branch Personnel (“Lobbying”), 1 Supp. Op. O.L.C. 240, 245 (1961), available at https://www.justice.gov/file/20781/download.↩2. See id. (“the President cannot carry out his constitutional duties in the legislative arena by himself and that necessarily he must entrust authority to his chief subordinates to act, and in turn to direct their own subordinates to act, in this arena in his stead”); Constraints Imposed by 18 U.S.C. § 1913 on Lobbying Efforts (“Constraints”), 13 Op. O.L.C. 300, 305 (1989) (“construing [the Act] broadly to restrict executive branch contacts with Members of Congress would interfere with the President’s constitutionally mandated role in the legislative process”), available at https://www.justice.gov/sites/default/files/olc/opinions/1989/09/31/op-olc-v013-p0300_0.pdf.↩3. Lobbying, 1 Supp. O.L.C. at 243 (“These extreme prohibitions have not been observed by either the Legislative or the Executive Branch and, as a practical matter, could not be observed without great harm to the lawmaking process.”); Constraints, 13 Op. O.L.C. at 303 (“We believe that Congress’ continued appropriation of funds for positions held by executive branch officials whose duties historically have included seeking support for the Administration’s legislative program constitutes “express authorization by Congress” for the lobbying activities of these officials, and thus, that their activities are exempt from [the Act].”) ↩4. Constraints, 13 Op. O.L.C. at 306 n.12. ↩5. Id. at 306. ↩6. Id.↩7. See id. at 301 (the Act “does not apply to public speeches, appearances and writings”). ↩8. See id. (in the context of public speeches, appearances, and writings officials are “free to publicly advance Administration . . . positions, even to the extent of calling on the public to encourage Members of Congress to support Administration positions.”); id. at 306 (the Act “does not prohibit speeches or other communications designed to inform the public generally about Administration policies and proposals or to encourage general public support for Administration positions”). ↩9. See, e.g., id. at 301 (the Act prohibits “substantial ‘grass roots’ lobbying campaigns of telegrams, letters and other private forms of communication designed to encourage members of the public to pressure Members of Congress to support Administration . . . legislative . . . proposals”); id. at 304 (the Act “was intended to ‘prohibit the Executive from using appropriated funds to create artificially the impression that there is a ground swell of public support for the Executive’s position on a given piece of legislation’”), citing Memorandum for Paul Michel, Acting Deputy Attorney General, from John M Harmon, Assistant Attorney General, Office of Legal Counsel, Re: Alleged Violations of 18 USC 1913 at 5 (Feb 20, 1980); id. at 306 (the Act “prohibits large-scale publicity campaigns to generate citizen contacts with Congress on behalf of an Administration position with respect to legislation”); see also Lobbying, 1 Supp. Op. O.L.C. at 243 (the criticism that motivated the Act “has almost always arisen from activities by government officials which are considered to be aimed at rallying opinion for or against pending legislation and not from the occurrence of personal conferences between such officials and members of Congress or their aides.”). ↩10. See, e.g., Constraints, 13 Op. O.L.C. at 301. ↩11. See, e.g., id. at 304 (OLC’s consistent position has been that the Act “was enacted to restrict the use of appropriated funds for large-scale, high-expenditure campaigns specifically urging private recipients to contact Members of Congress about pending legislative matters on behalf of an Administration position”) (emphasis added). ↩12. Public Citizen, Restrictions on Government Entities Lobbying the Federal Government, at 2 (2010) (The Act “does not apply to the lobbying activities undertaken by the President, his aides and assistants within the Executive Office of the president, the Vice President, cabinet members within their areas of responsibility, and other Senate- confirmed officials appointed by the President within their areas of responsibility.”), citing OLC, Guidelines on 18 U.S.C. 1913, at 2 (Apr. 14, 1995), available at https://www.citizen.org/documents/Govt-Lobbying-Govt.pdf. ↩13. See, e.g., Lobbying, 13 Op. O.L.C. at 303 n.5 (“We caution, however, against these officials [including the President, his aides and assistants within the Executive Office of the President] engaging in “grass-roots” campaigns of the type mentioned in the legislative history to [the Act]”). ↩14. Application of Anti-Lobbying Restrictions to HUD Report Losing Ground, B-284226.2, at 6 (Comp. Gen. Aug. 17, 2000). ↩15. See Department of Housing and Urban Development—Anti-Lobbying Provisions, B-325248 (Comp. Gen. Sept. 9, 2014). ↩16. Id. at 6-7. ↩